BILL NUMBER: AB 239	CHAPTERED  07/26/99

	CHAPTER   175
	FILED WITH SECRETARY OF STATE   JULY 26, 1999
	APPROVED BY GOVERNOR   JULY 26, 1999
	PASSED THE ASSEMBLY   JULY 15, 1999
	PASSED THE SENATE   JULY 8, 1999
	AMENDED IN SENATE   JULY 2, 1999

INTRODUCED BY   Assembly Member Kaloogian

                        JANUARY 28, 1999

   An act to amend Sections 2357, 2580, and 17200 of, to add Part 18
(commencing with Section 825) to Division 2 of, and to repeal Section
7200 of, the Probate Code, relating to estates and trusts.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 239, Kaloogian.  Estates and trusts.
   (1) Existing case law provides that a right to jury trial in a
civil matter exists only where that right existed at common law; jury
trials in probate proceedings were unknown to common law.  Existing
statutory law specifies that there is no right to a jury trial in
proceedings under the Probate Code concerning the administration of a
decedent's estate, except as otherwise expressly provided in the
Probate Code.
   This bill would revise existing statutory law to specify that
there is no right to a jury trial in proceedings under the Probate
Code, except as otherwise expressly provided in the Probate Code.
   (2) Existing law requires a petition for court authorization of
specified medical treatment for a ward or conservatee to include
specified information.  Existing law requires the court, upon the
filing of the petition, to notify the attorney of record for the ward
or conservatee or appoint the public defender or private counsel to
consult with and represent the ward or conservatee.  It also
authorizes a hearing on the petition to be held pursuant to an order
of the court prescribing the notice to be given.
   This bill would specify additional information to be included in
the petition, and would revise the notice requirements, as specified.

   (3) Under existing law, a court may authorize or require a
conservator to take a proposed action for specified purposes,
including the exercise or surrender of the right of the conservatee
to revoke a revocable trust under specified conditions.
   This bill would include within these purposes, the exercise or
surrender of the right of the conservatee to modify a revocable trust
under specified conditions.
   (4) Under existing law, a trust instrument may by amended in order
to qualify a decedent's estate for the charitable estate tax
deduction under federal law in any case in which all parties
interested in the trust have submitted written agreement to the
proposed changes or written disclaimer of interest.
   This bill would delete the written agreement or disclaimer
requirement.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Part 18 (commencing with Section 825) is added to
Division 2 of the Probate Code, to read:

      PART 18.  RIGHT TO TRIAL

   825.  Except as otherwise expressly provided in this code, there
is no right to a jury trial in proceedings under this code.
  SEC. 2.  Section 2357 of the Probate Code is amended to read:
   2357.  (a) As used in this section:
   (1) "Guardian or conservator" includes a temporary guardian of the
person or a temporary conservator of the person.
   (2) "Ward or conservatee" includes a person for whom a temporary
guardian of the person or temporary conservator of the person has
been appointed.
   (b) If the ward or conservatee requires medical treatment for an
existing or continuing medical condition which is not authorized to
be performed upon the ward or conservatee under Section 2252, 2353,
2354, or 2355, and the ward or conservatee is unable to give an
informed consent to such medical treatment, the guardian or
conservator may petition the court under this section for an order
authorizing such medical treatment and authorizing the guardian or
conservator to consent on behalf of the ward or conservatee to such
medical treatment.
   (c) The petition shall state, or set forth by medical affidavit
attached thereto, all of the following so far as is known to the
petitioner at the time the petition is filed:
   (1) The nature of the medical condition of the ward or conservatee
which requires treatment.
   (2) The recommended course of medical treatment which is
considered to be medically appropriate.
   (3) The threat to the health of the ward or conservatee if
authorization to consent to the recommended course of treatment is
delayed or denied by the court.
   (4) The predictable or probable outcome of the recommended course
of treatment.
   (5) The medically available alternatives, if any, to the course of
treatment recommended.
   (6) The efforts made to obtain an informed consent from the ward
or conservatee.
   (7) The name and addresses, so far as they are known to the
petitioner, of the persons specified in subdivision (c) of Section
1510 in a guardianship proceeding or subdivision (b) of Section 1821
in a conservatorship proceeding.
   (d) Upon the filing of the petition, unless an attorney is already
appointed the court shall appoint the public defender or private
counsel under Section 1471, to consult with and represent the ward or
conservatee at the hearing on the petition and, if that appointment
is made, Section 1472 applies.
   (e) Notice of the Petition shall be given as follows:
   (1) Not less than 15 days before the hearing, notice of the time
and place of the hearing, and a copy of the petition shall be
personally served on the ward, if 12 years of age or older, or the
conservatee, and on the attorney for the ward or conservatee.
   (2) Not less than 15 days before the hearing, notice of the time
and place of the hearing, and a copy of the petition shall be mailed
to the following persons:
   (A) The spouse, if any, of the proposed conservatee at the address
stated in the petition.
   (B) The relatives named in the petition at their addresses stated
in the petition.
   (f) For good cause, the court may shorten or waive notice of the
hearing as provided by this section.  In determining the period of
notice to be required, the court shall take to account both of the
following:
   (1) The existing medical facts and circumstances set forth in the
petition or in a medical affidavit attached to the petition or in a
medical affidavit presented to the court.
   (2) The desirability, where the condition of the ward or
conservatee permits, of giving adequate notice to all interested
persons.
   (g) Notwithstanding subdivisions (e) and (f), the matter may be
submitted for the determination of the court upon proper and
sufficient medical affidavits or declarations if the attorney for the
petitioner and the attorney for the ward or conservatee so stipulate
and further stipulate that there remains no issue of fact to be
determined.
   (h) The court may make an order authorizing the recommended course
of medical treatment of the ward or conservatee and authorizing the
guardian or conservator to consent on behalf of the ward or
conservatee to the recommended course of medical treatment for the
ward or conservatee if the court determines from the evidence all of
the following:
   (1) The existing or continuing medical condition of the ward or
conservatee requires the recommended course of medical treatment.
   (2) If untreated, there is a probability that the condition will
become life-endangering or result in a serious threat to the physical
or mental health of the ward or conservatee.
   (3) The ward or conservatee is unable to give an informed consent
to the recommended course of treatment.
   (i) Upon petition of the ward or conservatee or other interested
person, the court may order that the guardian or conservator obtain
or consent to, or obtain and consent to, specified medical treatment
to be performed upon the ward or conservatee.  Notice of the hearing
on the petition under this subdivision shall be given for the period
and in the manner provided in Chapter 3 (commencing with Section
1460) of Part 1.
  SEC. 3.  Section 2580 of the Probate Code is amended to read:
   2580.  (a) The conservator or other interested person may file a
petition under this article for an order of the court authorizing or
requiring the conservator to take a proposed action for any one or
more of the following purposes:
   (1) Benefiting the conservatee or the estate.
   (2) Minimizing current or prospective taxes or expenses of
administration of the conservatorship estate or of the estate upon
the death of the conservatee.
   (3) Providing gifts for any purposes, and to any charities,
relatives (including the other spouse), friends, or other objects of
bounty, as would be likely beneficiaries of gifts from the
conservatee.
   (b) The action proposed in the petition may include, but is not
limited to, the following:
   (1) Making gifts of principal or income, or both, of the estate,
outright or in trust.
   (2) Conveying or releasing the conservatee's contingent and
expectant interests in property, including marital property rights
and any right of survivorship incident to joint tenancy or tenancy by
the entirety.
   (3) Exercising or releasing the conservatee's powers as donee of a
power of appointment.
   (4) Entering into contracts.
   (5) Creating for the benefit of the conservatee or others,
revocable or irrevocable trusts of the property of the estate, which
trusts may extend beyond the conservatee's disability or life.  A
special needs trust for money paid pursuant to a compromise or
judgment for a conservatee may be established only under Chapter 4
(commencing with Section 3600) of Part 8, and not under this article.

   (6) Transferring to a trust created by the conservator or
conservatee any property unintentionally omitted from the trust.
   (7) Exercising options of the conservatee to purchase or exchange
securities or other property.
   (8) Exercising the rights of the conservatee to elect benefit or
payment options, to terminate, to change beneficiaries or ownership,
to assign rights, to borrow, or to receive cash value in return for a
surrender of rights under any of the following:
   (i) Life insurance policies, plans, or benefits.
   (ii) Annuity policies, plans, or benefits.
   (iii) Mutual fund and other dividend investment plans.
   (iv) Retirement, profit-sharing, and employee welfare plans and
benefits.
   (9) Exercising the right of the conservatee to elect to take under
or against a will.
   (10) Exercising the right of the conservatee to disclaim any
interest that may be disclaimed under Part 8 (commencing with Section
260) of Division 2.
   (11) Exercising the right of the conservatee (i) to revoke or
modify a revocable trust or (ii) to surrender the right to revoke or
modify a revocable trust, but the court shall not authorize or
require the conservator to exercise the right to revoke or modify a
revocable trust if the instrument governing the trust (i) evidences
an intent to reserve the right of revocation or modification
exclusively to the conservatee, (ii) provides expressly that a
conservator may not revoke or modify the trust, or (iii) otherwise
evidences an intent that would be inconsistent with authorizing or
requiring the conservator to exercise the right to revoke or modify
the trust.
   (12) Making an election referred to in Section 13502 or an
election and agreement referred to in Section 13503.
   (13) Making a will.
  SEC. 4.  Section 7200 of the Probate Code is repealed.
  SEC. 5.  Section 17200 of the Probate Code is amended to read:
   17200.  (a) Except as provided in Section 15800, a trustee or
beneficiary of a trust may petition the court under this chapter
concerning the internal affairs of the trust or to determine the
existence of the trust.
   (b) Proceedings concerning the internal affairs of a trust
include, but are not limited to, proceedings for any of the following
purposes:
   (1) Determining questions of construction of a trust instrument.
   (2) Determining the existence or nonexistence of any immunity,
power, privilege, duty, or right.
   (3) Determining the validity of a trust provision.
   (4) Ascertaining beneficiaries and determining to whom property
shall pass or be delivered upon final or partial termination of the
trust, to the extent the determination is not made by the trust
instrument.
   (5) Settling the accounts and passing upon the acts of the
trustee, including the exercise of discretionary powers.
   (6) Instructing the trustee.
   (7) Compelling the trustee to report information about the trust
or account to the beneficiary, if (A) the trustee has failed to
submit a requested report or account within 60 days after written
request of the beneficiary and (B) no report or account has been made
within six months preceding the request.
   (8) Granting powers to the trustee.
   (9) Fixing or allowing payment of the trustee's compensation or
reviewing the reasonableness of the trustee's compensation.
   (10) Appointing or removing a trustee.
   (11) Accepting the resignation of a trustee.
   (12) Compelling redress of a breach of the trust by any available
remedy.
   (13) Approving or directing the modification or termination of the
trust.
   (14) Approving or directing the combination or division of trusts.

   (15) Amending or conforming the trust instrument in the manner
required to qualify a decedent's estate for the charitable estate tax
deduction under federal law, including the addition of mandatory
governing instrument requirements for a charitable remainder trust as
required by final regulations and rulings of the United States
Internal Revenue Service.
   (16) Authorizing or directing transfer of a trust or trust
property to or from another jurisdiction.
   (17) Directing transfer of a testamentary trust subject to
continuing court jurisdiction from one county to another.
   (18) Approving removal of a testamentary trust from continuing
court jurisdiction.
   (19) Reforming or excusing compliance with the governing
instrument of an organization pursuant to Section 16105.
   (20) Determining the liability of the trust for any debts of a
deceased settlor.  However, nothing in this paragraph shall provide
standing to bring an action concerning the internal affairs of the
trust to a person whose only claim to the assets of the decedent is
as a creditor.
   (21) Determining petitions filed pursuant to Section 15687 and
reviewing the reasonableness of compensation for legal services
authorized under that section.  In determining the reasonableness of
compensation under this paragraph, the court may consider, together
with all other relevant circumstances, whether prior approval was
obtained pursuant to Section 15687.
   (22) If a member of the State Bar of California has transferred
the economic interest of his or her practice to a trustee and if the
member is a deceased member under Section 9764, a petition may be
brought to appoint a practice administrator.  The procedures,
including, but not limited to, notice requirements, that apply to the
appointment of a practice administrator for a deceased member shall
apply to the petition brought under this section.
   (23) If a member of the State Bar of California has transferred
the economic interest of his or her practice to a trustee and if the
member is a disabled member under Section 2468, a petition may be
brought to appoint a practice administrator.  The procedures,
including, but not limited to, notice requirements, that apply to the
appointment of a practice administrator for a disabled member shall
apply to the petition brought under this section.
